SIGN
THE CARD, AND LOSE YOUR JOB – TSA’S NEW RULE FOR UNIONS
By David Bacon
East Bay Express

OAKLAND, CA (9/10/04) – John Gavello and his lawyer, Mary Dryovage,
don’t seem at all like leftwingers.

When Gavello stands outside the Oakland airport
with his arms crossed, the sun shines on his shaved head and broad shoulders
like the picture on a Mr. Clean bottle. Nor does he make impassioned speeches
about getting fired for organizing a union in the terminal behind him.
In fact, when he talks about it, a note of wonder creeps into his voice
-- a kind of “how can they do this” tone. Gavello still can’t
quite accept that his ex-employer, the Federal government, says he doesn’t
have what seems such an ordinary right.

And when Dryovage starts talking about his case,
she breaks off and apologizes time after time. In the course of a half-hour,
she must say “I don’t mean to sound inflammatory” half
a dozen times. She too can’t quite get the tone of puzzlement out
of her voice, much less the anger behind it. “How can they be responsible
for enforcing labor law,” she asks, “and yet say don’t
have to obey it?” Like Gavello, it’s hard for her to digest
– hearing the time-honored, decades-old, even prosaic process of
talking union described in a San Francisco courtroom in the frightening
new language of terrorism and threats to national security.

And yet it really shouldn’t be a surprise.
Unions have been banned in the Department of Homeland Security for over
a year. But now the Federal government, which is responsible for enforcing
the union rights of the nation’s workers, has fired a worker for
the crime of joining one.

On January 9, 2003, the Bush administration banned
collective bargaining for over 40,000 airport screeners. Admiral James
Loy, head of the Transportation Security Administration, which employs
them, claimed, "fighting terrorism demands a flexible workforce that
can rapidly respond to threats. That can mean changes in work assignments
and other conditions of employment that are not compatible with the duty
to bargain with labor unions."

Had this been the private sector, or even those
remaining parts of the Federal government where normal labor rights still
apply, Loy’s action would itself have been illegal. Private sector
workers got the right to organize unions under the National Labor Relations
Act in 1936. Federal workers had to wait a few decades, but under Jimmy
Carter Congress passed the Civil Service Reform Act, which became effective
on January 20, 1980. Since then all Federal employees have had the right
to bargain, except soldiers in the military.

That is, until President Bush got Congress to change
the rules. Since September 11, 2001, the terrain for labor relations has
changed dramatically. Title 5 of the Civil Service Act was modified, and
many rights were stripped away.

The original workforce of 40,000 baggage screeners
was fired when Congress created the Transportation Security Administration.
TSA refused to rehire them because most were immigrants. They were really
some of the first victims of the post-911 anti-immigrant hysteria. They
were blamed for letting the hijackers on the airplanes, despite the fact
that no one was ever shown to have violated any inspection protocol.

Then, among the new screeners hired by TSA, unions
were prohibited. TSA spokesperson Chris Rhatigan justified the ban. “Collective
bargaining would be incompatible with the nation's safety," he said.
Nico Melendez, another TSA representative, declared bluntly, "security
is paramount and collective bargaining could cripple the system.”

“What they really did was take away the system
that gave people a feeling of fairness at work,” Dryovage explains,
trying to stay calm, “like grievance procedures, the right to protest
bad treatment, or blow the whistle if management wasn’t following
its own rules. That has a big effect on morale. A feeling of fairness
and security is fundamental to people working on a team.”

This spring, the government moved one step further
in its denial of union rights. John Gavello, who’d been working
as a screener in Oakland since last summer, was fired when he tried to
organize his fellow workers.

When Loy banned unions a year-and-a-half ago, the
new TSA workforce was in the midst of a major organizing drive. The American
Federation of Government Employees had filed petitions to bargain for
thousands of workers at LaGuardia, Baltimore, Pittsburgh, Chicago Midway,
Greensboro, Harlingen/McAllen/Brownsville, and Columbus. More workers
were forming organizing committees at JFK, Tampa, Orlando, Charlotte,
Atlantic City and Des Moines.

Loy’s edict stopped the drive in its tracks.

Many workers, however, still wanted to get organized.
Gavello was one of them. After getting his screener’s job a year
ago, he noticed that some workers had to wait weeks to get their paychecks.
When he was asked to work Sundays, TSA refused to pay him overtime. “People
were afraid to complain,” he said, “because management would
pull them in, accuse them of making mistakes, and interrogate them.”

Despite Loy’s ban, Gavello thought a union
was needed. But standing on a soapbox isn’t his style. Instead,
in a calm and open approach to his managers last November, he told his
supervisor he intended to post union literature on the employee bulletin
board. He did this even before he started talking about his union idea
to other workers, His immediate superior had no problem with it.

Despite having a part-time status for most of the
time he worked for TSA, Gavello put in a lot of hours at the big Invision
machine which X-rays suitcases in the lobby of Terminal One. His coworkers
obviously like him, and even today talk with him warmly when he stops
by his old worksite. He’s a natural organizer, and would have quickly
signed up most of his workmates.

Someone must have checked with Washington, however,
and things soon changed. On November 20, Gavello was given a written warning
that said “You are not allowed to enter into any discussion or conversion
about your union, or solicit membership in or for any union...while on
duty as a TSA Transportation Security Screener.”

The next day, he was accused of talking union with
another worker. “I told them I’d done nothing wrong,”
Gavello says. He asked for a witness to his interrogation by supervisors,
a right guaranteed at the time even to non-union workers by the Weingarten
Rule, issued in the 1970s by the National Labor Relations Board. His request
was denied, and Gavello was suspended for two weeks. Early this year,
the Bush administration’s appointees to the NLRB announced that
the Weingarten Rule no longer applies to non-union workers.

Gavello wasn’t immediately fired, but TSA
began building a file on him. Gavello continued to protest shortcomings
in the workplace, and on February 26, faxed a copy of a complaint to TSA
in Washington DC. He also sent a copy to another AFGE lawyer helping him
with his case, Gony Frieder. TSA called this a breach of security and
fired him.

“That’s ridiculous – they can’t
fire someone for seeking the advice of an attorney. It’s clear he
was fired for union activity,” Dryovage says. “His supervisor
even told him they were watching him, and would get him for it. They just
don’t want any union activists to work there because they want complete
flexibility in how they treat their workers, and so they don’t want
people with a good sense of their rights.”

Melendez would not comment on Gavello's case. "Screeners
can join unions," he asserted, but admitted that "they cannot
engage in collective bargaining, which is incompatible with national security."
He couldn't give an example, however, of a situation in which a union
or contract would jeapordize it.

Ken Jacobs, deputy chair of the Center for Labor
Research and Education at UC Berkeley, said Gavello's case "falls
within a concerted strategy by the Federal government to restrict union
rights." He says the elimination of Weingarten rights and the ban
on unions for airport screeners are connected. "The strategy is to
take away labor right," he explains. "The method may vary, but
the trend is the same."

The Alice-In-Wonderland process didn’t stop
there, however.

In April, Gavello and Dryovage filed suit over
the firing in US District Court, saying it violated his Constitutional
right to free speech and freedom of association. The government responded
that Federal employees can’t use the courts to resolve workplace
problems. Instead, they are required to use civil service procedures.

But in practically the next sentence, TSA attorneys
said that Gavello can’t do that either. The same order that banned
collective bargaining at TSA also suspended civil service’s grievance
procedures and whistle-blower protections.

According to the government, Constitutional rights
end where the baggage lines begin.

The Federal government is still the authority responsible
for enforcing the laws that guarantee almost all workers the right to
a union, including Federal employees outside the Homeland Security Department.
And the preamble to National Labor Relations Act, still declares that
workers not only can, but should, come together in unions to bargain with
their employers. This statement is the bedrock of all US labor protection
legislation.

That makes Gavello’s case a watershed in
determining what labor rights US workers will continue to have. “The
administration has plans on the drawing board to expand this experience
to other Federal agencies,” Dryovage warns. “The Defense Department,
with an even larger workforce, is next in line. But international law,
not just US law, guarantees the right to have a union, and we’re
at a very important point in history if the government can say they don’t
apply here.”

But Gavello’s case highlights a growing conflict
of interest. How can the Federal government protect workers’ right
to organize, while at the same time saying it can fire one of its own
employees with impunity, when he tries to do so? Dryovage says the government
doesn’t really have a case, and under normal circumstances, Gavello
would see his rights recognized by the courts. But if these were normal
times, Admiral Loy would have been laughed at for asserting that having
a union would jeapordize the nation’s security.

As the case sits before US District Judge Claudia
Wilkin in San Francisco, the right to a union hangs in the balance. “My
case could decide whether workers have rights, and not just at airports,”
Gavello says. “Right now, it feels like we don’t have any
rights at all.”